If your car or truck has been damaged or totaled in an accident, you probably want to file an insurance claim. Here are some answers to some questions you may have about that process in the State of Washington.

Do I need an attorney or lawyer to file my property damage claim with an insurance company?

No, you do not need a lawyer to file a property damage claim. In fact, most accident victims deal with the property damage issues without representation by a lawyer.

We present this information here as an aid to anyone who is attempting to deal with insurance companies regarding property damage claims.

It can, however, be very advantageous to have an attorney represent you for the personal injury portion of your claim arising from an accident. If you have been injured as the result of an accident, please contact our office so that one of our auto accident attorneys can speak with you regarding your potential claim for personal injury.

Do I have a choice about which insurance company to file a claim with?

Yes, in certain situations. If the accident was caused by the negligence of the driver of another vehicle, you have two choices: (1) file your property damage claim with your own insurance company; or (2) file your property damage claim with the other driver’s insurance company.

Which insurance company should I file my property damage claim with?

Your choice here depends on several factors (explained in more detail below):

Payment of a deductible on collision coverage

Payment for a rental car until your car is repaired or a settlement offer is made on a vehicle that is a total loss

The possibility that you may make a claim for personal injury

Your legal relationship with either insurance company

What if I file my property damage claim with my own insurance company?

Deductible

First, your insurance company will require you to pay the deductible amount on your policy’s collision coverage. If the other driver is at fault, your insurance company can recover that deductible amount from the other driver’s insurance company, and then will repay it to you. The main problem with this situation is that you may have to wait weeks or months to get reimbursed for the deductible amount.

Rental Car

Second, your insurance company is not required to pay for a rental car for you … unless you have that specific coverage on your policy. You can call your insurance agent to find out if you have that coverage.

Personal Injury Claim

Third, it is important to understand that there is often a relationship between the extent of your property damage and the amount you can recover for personal injury. Insurance adjusters often reason that “If the property damage was so minimal, then you must not have been injured.”

If you file your property damage claim with the other driver’s insurance company, they may work to minimize the dollar amount of your claim, knowing that a lower property damage amount will be in their favor when it comes time to negotiate your personal injury claims. In cases where you are not at fault, your own insurance company does not have that motive. The other insurance company will ultimately pay for both your property damage and personal injury claims.

Fiduciary Responsibility

Finally, a big advantage to filing a claim with your own insurance company is that you already have a contractual relationship with them through your insurance policy. This means that your own insurance company is held to higher legal standards to protect your interests. If they don’t live up to those standards, you have a much stronger case for legal recourse against them than you might have against the other driver’s insurance company. Moreover, because of the enhanced legal duty of “good faith,” it is less likely that your insurance company will place its interests above your interests.

What if I file my property damage claim with the other driver’s insurance company?

Deductible

You don’t have to pay any deductible to the insurance company of the other driver.

Rental Car

The insurance company of the other driver will likely provide you with a rental vehicle while yours is being repaired, or until a settlement offer is made on a vehicle that is a total loss.

Personal Injury Claim

As stated above, it is important to understand that there is often a relationship between the extent of your property damage and the amount you can recover for personal injury. If you file your property damage claim with the other driver’s insurance company, they may be motivated to try to minimize the dollar value of the property damage to your car. This can later help them make an argument for a lower personal injury amount.

Fiduciary Responsibility

Unlike the situation with your own insurance company, the other insurance company has no contractual relationship with you. That is, they have no “duty of good faith” to protect your interests. They are looking out for themselves and the other driver, with whom they have a contract (policy). With regard to you, they are simply interested in resolving your claim and moving on. It is virtually impossible to successfully bring suit against another person’s insurance company.

Not sure which insurance company to file your claim with?

We can help you with that decision. Just contact our office to speak with one of our auto accident attorneys who can help you understand how to make the best choice.

Do I have to file my personal injury claim along with my property damage claim?

Absolutely not! In fact, this is a very important point for all victims of motor vehicle accidents to understand. Your property damage claim is handled separately from any personal injury claim. As a rule, the property damage is taken care of first, and then later any personal injury claims are settled.

Because personal injuries may not manifest completely until some time after the accident, it is important that you don’t rush into any settlement for a personal injury claim. If you have injuries or other losses resulting from the accident, it’s a good idea to get some legal advice from a personal injury attorney. Just contact our office to speak with one of our auto accident attorneys who can discuss your claims for personal injury and other losses.

What happens after I file my property damage claim?

An insurance adjuster will examine your vehicle to determine the extent of the damage. At that point, an important decision is made that affects the rest of the process of settling your property damage claim.

Is the vehicle repairable?

If the adjuster determines that your vehicle is repairable, then you are ready to start the repair process. For information on the steps in this process, see Getting Your Vehicle Repaired.

Is the vehicle a “total loss?”

If the adjuster determines that your vehicle is a total loss, then you need to negotiate a settlement with the insurance company. For information on dealing with this process, see Dealing with a “Total Loss” Vehicle.

Getting Your Vehicle Repaired

Once you have filed a property damage claim for your vehicle, an insurance company adjuster (or a team of adjusters) will work with you to process your claim and get your vehicle repaired. (Note: If the insurance company has determined that it is not cost-effective to repair your vehicle, please see Dealing with a “Total Loss” Vehicle.)

What repairs are covered on my property damage claim?

Unless your vehicle is declared a total loss, the insurance company must pay to have your car restored to its pre-accident condition. This includes both mechanical work and body work.

Can I demand that the insurance company pay for new, name-brand parts used in the repair?

Generally not, unless the vehicle itself is new or almost new. The law in Washington State allows insurance companies to substitute “aftermarket” parts (or used parts) for the repair of used vehicles. The company owes you repair or replacement with like kind and quality parts, not necessarily new parts. If the parts and repairs are guaranteed by the repair shop, and are in the same condition as the parts damaged, then they are deemed to conform to the repair requirements. If you insist on certain parts you may have to pay the additional cost.

Do I have to use a repair shop approved by the insurance company?

No, you can get your car repaired anywhere you choose. However, there may be several advantages to having it repaired at a facility approved by the insurance company.

First, the insurance company and their approved repair shop will have agreed on the cost to repair your vehicle. This means that you won’t have to pay any extra, other than any deductible amount if you are using your own insurance company.

The insurance company is obligated to pay only the reasonable cost of repairs. If you use a non-approved shop to repair your vehicle, and the repair bill is higher than what the insurance company estimated, you could be responsible for paying the difference to the repair shop.

Second, an approved repair shop may offer a better guarantee on the repairs because of their ongoing relationship with the insurance company. In some cases, you may get a guarantee that lasts as long as you own the vehicle.

Can I get a written estimate of repairs from the insurance company?

Yes. In fact, Washington State law requires the insurance company to provide you with a written, itemized repair estimate.

Am I liable for towing and storage charges for my vehicle?

It depends on who is at fault for the accident. If you are at fault, then yes, you are liable for those charges. Some insurance policies may cover some of those charges, so check with your agent. If the other driver is 100% at fault, those charges will be the responsibility of the other driver. If there is shared fault for the accident, those charges should be divided according to the percentage of fault of each driver.

NOTE: It is important to keep in mind that you have a duty to minimize your loss. If you delay settlement of the property damage claim or you delay in authorizing repairs, the insurance company may refuse to pay the full amount of the storage charges.

Do I have to get my vehicle fully repaired?

No, you don’t. Insurance companies have differing policies regarding payment procedures. Your company may have policy language regarding whether it is necessary to repair your vehicle, or to make the draft payable to a lien holder or a body shop and the owner. If the other party’s insurance company is paying, they are required to pay either the registered owner or the lien holder, or both. A direct payment to the owner who doesn’t repair the car right away usually will not allow for any supplemental payments for undetected, additional damage.

What if I discover something else is damaged after the repairs are made?

You have every right to make a supplemental claim for damages that were unknown to you or the insurance adjuster at the time of the original repair.

What is “diminished value?”

Vehicles that have suffered substantial damage in accidents often have “diminished value” – that is, people place a lower value on such a vehicle solely because it was damaged in an accident, even if the vehicle has been repaired or is repairable. For example, many used car dealers will not take seriously damaged vehicles in trade, even if they have been repaired. (Records of all vehicles involved in accidents are available to the public.)

Washington State law recognizes diminished value as a valid claim, and this loss can be documented by an appraiser.

What if I feel that my vehicle will not be safe after it is repaired?

This may be a valid consideration, but the insurance company does not have to declare your vehicle a total loss if it can be reasonably repaired to its previous condition. The insurance company has the right to settle your claim in the least expensive manner. If the combined value of the repair work and the diminished value after repairs is less than what it would pay for a total loss, the insurance company is not required to offer you any more, even if you feel the vehicle would be unsafe.

Dealing with a Total Loss Vehicle

How is total loss determined?

If the vehicle cannot be structurally repaired, it is considered a total loss. In addition, the vehicle may be declared a total loss if the cost to repair your vehicle is more than a certain percentage of its fair market value before the accident. (This percentage is usually between 70% and 80%.)

The law in Washington State does not require the insurance company to pay for repairs that total more than the vehicle’s fair market value before the accident.

How is a vehicle’s fair market value determined?

Fair market value is defined as the amount that a seller (who is not being forced to sell) and a buyer (who is not being forced to buy) would reasonably agree on as the sales price for the vehicle just before the accident occurred. This means that in addition to the year, make, and model of the vehicle, information about the mileage and condition of the vehicle are considered in determining fair market value.

The insurance company is required to rely on data about actual sales of similar vehicles that have taken place in your region or local market. There are several companies (the two largest are CCC and ADP) who survey the market and report this information to insurance companies. The insurance company may not use a so-called “book figure” from consumer guides such as Kelly Blue Book or Edmunds.com to establish fair market value.

What is included in a total loss settlement offer?

The insurance company must include the following items in a total loss settlement offer:

Fair market value of the vehicle just before the accident occurred.

Sales tax on the fair market value amount.

Pro-rated unused portion of the license tab fees.

Payment for a rental car for you up to the point that the settlement offer is made. (If you don’t use a rental car, you are entitled to receive an amount equivalent to the cost of a rental car for the same period representing your “loss of use.”)

Title transfer fee.

If you agree to the settlement offer, you are required to provide the insurance company with title to the vehicle and possession of the vehicle before you receive the settlement check. You don’t get to keep the vehicle.

Can I negotiate with the insurance company regarding the fair market value of my vehicle?

Yes. If you feel that the total loss settlement offered by the insurance company is inadequate, you have every right to present information to support an increased fair market value. You are required to supply documentation for your claims, which may include any of the following:

Odometer (mileage) reading.

Photos of the vehicle, especially photos of both the damaged and undamaged areas from different angles, as well as photos of the interior.

Purchase documents if you have owned the car for less than four months.

Written estimates from two or three local car dealers on what amount they would have paid for your vehicle before it was damaged.

Note: Items that are considered normal vehicle maintenance, such as tune-ups, new tires, etc., are not considered in the determination of fair market value.

What if the total loss settlement offer is less than the amount I owe on the vehicle loan?

Under the terms of most auto loan agreements, you are responsible for paying the difference to the holder of the loan. It’s a fact of the market that some cars, especially new cars, lose fair market value faster than loan balance decreases as you pay off the loan.

To deal with this problem, most auto loan providers offer “gap” insurance, which covers this difference, or gap, in the event your vehicle is declared a total loss.

What if I want to keep the damaged vehicle that has been declared a total loss?

To keep the vehicle, you must pay the insurance company the “salvage value” of the vehicle. You have the right to match the highest bid from an auto wrecker for your vehicle, and the insurance company will pay you the fair market settlement less the salvage value.

If you keep your vehicle, you must notify the State of Washington by writing on the title document that the vehicle was “TOTALED,” and then send the title to the Department of Licensing (DOL). The DOL has procedures by which you can repair the vehicle, have it inspected, and return it to service. Contact the DOL Customer Service Unit for details.

Note: If you vehicle still has an outstanding loan balance, you may have to negotiate an agreement with the holder of the auto loan to keep the salvaged vehicle.

Rental Car Issues

Will the insurance company pay for a rental car while my vehicle is in the repair shop or stored at a towing yard?

If the other driver is at fault and you file your property damage claim with that person’s insurance company, then the answer is yes.

If you file your property damage claim with your own insurance company, they are required to pay for a rental car only if your policy includes that specific coverage.

How long will they pay for the rental car?

The insurance company will pay for the rental car until your vehicle repairs are complete, or until a total loss settlement offer is made to you.

Do I have to take a small or compact rental car?

You are entitled to a rental vehicle that is comparable in size and function to your own vehicle. For example, if your damaged vehicle is a small truck, the insurance company must pay for a rental of a similar vehicle for you.

What if I can get by without a rental car?

If the other driver is at fault and you file your property damage claim with that person’s insurance company, you are entitled to use of a rental car. If you choose not to rent a car, then you are entitled to receive payment for the amount equivalent to what a rental car would have cost.

What if the other driver’s insurance company refuses to pay for my rental car?

It may happen that the other driver’s insurance company has not yet been able to contact the other driver to get their version of the accident. If the other driver is later determined to be at fault, you are entitled to receive reimbursement for the cost of renting a car.

Payments and Deductibles

Do I have to pay a deductible for my collision insurance coverage?

If you file your property damage claim with your own insurance company, then, yes, you will normally be required to pay the deductible for your vehicle repairs.

Do I have to pay for a rental car?

If the other driver is at fault and you file your property damage claim with that person’s insurance company, they are required to pay for a rental car for you.

If you file your property damage claim with your own insurance company, they are required to pay for a rental car only if your policy includes that specific coverage. If you don’t have that coverage, then you are responsible for the cost of a rental car.

Why do I have to sign over an insurance check to the auto repair shop?

This is usually the case when you still have an outstanding balance on your auto loan. To protect its interests in the collateral for the loan (your vehicle), the bank or finance company will require that the repairs actually get done. Having you sign over the check to the auto repair shop ensures that the repairs are made.

Insurance Company Fairness

What can I do if I feel like the insurance company is treating me unfairly?

The insurance industry in Washington State is regulated by the Office of the Insurance Commissioner in Olympia, WA, and this office is the best place to start. You can file a complaint with the Office through their Web site for you can call the Consumer Hotline at 1-800-562-6900.

If you don’t feel that you are getting satisfaction from working this process, our law firm may be able to help. Please contact our office so that one of our attorneys – all of whom are experienced in dealing with insurance companies – can speak with you about your grievance.

What rights do I have under Washington State law with respect to an insurance company?

In addition to numerous existing legal remedies, Washington State recently enacted into law the Insurance Fair Conduct Act. This law provides legal remedies for policyholders, including the ability to seek punitive damages in court if their claims are unreasonably denied by their insurance companies or their insurance company violates particular regulations governing unfair claims settlement practices.

The potential for punitive damages in such cases is designed to create more leverage for consumers pursuing their rights against insurance companies.

Note that this particular law applies only to claims made by insured people to their own insurance companies. It does not apply to claims made by one person to someone else’s insurance company.

Personal Injury Claims and Other Losses

Do I need a lawyer to file or settle a claim for personal injuries?

No, it is not necessary to be represented by a lawyer for your personal injury claim. However, it may be a very good idea to get legal advice about your rights and how to negotiate the best settlement.

We prefer to be involved in a case as early as possible so that we can prevent mistakes in the handling of our client’s claims. Because you cannot “unbake a cake,” the surest path to achieving a fair settlement is to obtain legal advice promptly. Adjusters are trained by insurance company attorneys to negotiate the lowest settlements possible; it is only “leveling the playing field” to have an experienced attorney in your corner as well.

If you have been injured as the result of an accident, please contact our office so that one of our auto accident attorneys can speak with you regarding your potential claim for personal injury.

What types of losses can be covered in personal injury claims?

Depending on the type and severity of the injuries, some of the following losses may be covered by a settlement from an insurance company:

Loss of income due to absence from work while recovering from injuries.

Compensation for pain and suffering from the injuries.

Other consequential losses that can be reasonably attributed to the injuries.

The auto accident attorneys at Wiener & Lambka will be glad to consult with you about your personal injury claims resulting from an accident. Please contact our office so that one of our auto accident attorneys can speak with you – by phone, at our offices, or at a place convenient for you (home, workplace, hospital, etc.). We will travel to you to demonstrate our commitment to superior customer service.

What about damage to my personal property in the vehicle?

If your personal property in the vehicle was also damaged, you have the right to recover those losses as well. You will need to document the damage to the property, such as photographs, and you will need to provide evidence of purchase of the property.

Tips for Dealing with Insurance Adjusters

Recognize that you are in a negotiation process.

Insurance adjusters are rated on their performance in closing settlements at the lowest possible cost to the insurance company. Note that there are two factors here: (1) closing settlements; and (2) lowest possible cost. Adjusters don’t want to keep claims unresolved for long periods of time. It reflects on their performance. If you are persistent in pressing a reasonable claim, at some point the adjuster may decide to offer your more just to get the case closed.

Don’t be the first to make an offer.

As with any negotiation, the party who names a number first has then set a limit on what will be acceptable to them. If the adjuster is thinking that your claim has a top value of $10,000 and you start by saying you want $5,000, you have just “left money on the table” as the saying goes. Let the adjuster make the first offer, and then negotiate up from there.

Always be civil in your conversations with insurance adjusters.

Angry outbursts or the use of foul language is much more likely to cause the insurance adjuster to develop a negative impression of you and your claim. Remember, adjusters are simply people who have been hired to do a job. The more humanely you treat them, the more likely you are to receive a similar response. That’s just human nature.

By the same token, if an adjuster does not treat you in a courteous and civil manner, you may want to consider legal representation.

Document your facts.

Do a good job in gathering evidence for your claim, such as photographs, written estimates, receipts for any expenses related to your claim, and the like. The more prepared you are with appropriate documentation, the more likely you are to receive fair consideration for your arguments. Remember, the adjuster’s decisions may be reviewed by an insurance company supervisor, and if the adjuster can show that you provided relevant documentation for your arguments, you are more likely to receive a favorable settlement.

Don’t allow yourself to be rushed into accepting a settlement.

If you receive phone calls from an adjuster at times when you might feel rushed – such as first thing in the morning just before you need to leave for work – you may be inclined to accept a settlement offer just to get it over with. Instead, call the adjustor back at a time that is convenient for you, when you won’t feel rushed to accept an offer.

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